chapter 006-_p36_the constitution is a perpetual lease

8/14/2019 Chapter 006-_p36_The Constitution is a PERPETUAL LEASE

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Page 1 of Chapter 006 INSPECTOR-RIKATI on IR WorkChoices legislation Page 1

A book about the validity of the High Courts 14-11-2006 decisionISBN 978-0 -9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5 (Book-Colour)

PLEASE NOTE: You may order, any of the published books, by facsimile 0011-61-3-94577209 [email protected]

Chapter 006 The Constitution is a PERPETUAL LEASE?

* Gary, lets have a look what you are stating about this PERPETUAL LEASE, shall we?

**#** INSPECTOR-RIKATI, now lets quote Chapter, 034O (published on 17-3-2007);

INSPECTOR-RIKATI on the battle SCHOREL-HLAVKA v BLACKSHIRTS

For the quest of JUSTICE, in different ways. Book on CD.

ISBN 978-0-9580569-4-6 was ISBN 0-9751760-4-3QUOTE Chapter

Gary, isnt this a masterstroke of a genius by you to expose the unconstitutionality of the

purported Australian Act 1986?

INSPECTOR-RIKATI, as my email of 28-2-2007 to Mr. Zachary Douglas indicates theConstitution is above the Parliament and as such the Commonwealth of Australia could not enact

a Constitution or purported Constitution ! The moment it could enact a Constitution then no

longer is a referendum required to amend the Constitution ! But let me quote my alternative to

Nick Hobsons Is the constitution safe set out, which may further explain that no matter what

the Constitution is a PERPETUAL LEASE, which cannot be interfered with by any Parliamentas only the People have the right to amend it in the manner provided for in Section 128 of the

Constitution .Sorell v Smith (1925) Lord Dunedin in the House of Lords

In an action against a set person in combination, a conspiracy to injure, followed by actual injury, will givegood cause for action, and motive or instant where the act itself is not illegal is of the essence of the

conspiracy.

Therefore any politician, lawyer/judge, etc who acts to undermine, erode or otherwise seek to

deny Australians of their constitutional rights, such as by the purported Australia Act in my viewcould be held to conspire for TREASON and other criminal issues, as after all it is to seek to rob

the People of their right to the British Crown and other rights.

The meaning of treason must be considered in the perception existing at the time of theFramers of the Constitution.

Hansard 10-3-1891 Constitution Convention Debates (Official Record of the Debates of the National

Australasian Convention)

Mr. DIBBS:

We have already made certain provision, partially of a federal character, to assist the Imperial Government inthe protection of our shores from without; but let us set our faces as a young nation -if I may use the word

"nation" in advance-against standing armies; let us set our face once and for ever against the creation of

anything like a military despotism. We are met here under the Crown, and I must say that, as onepossessing a slight tinge of republican notions, as one who sees that the future of Australia is to be what

was prophesied of it fifty years ago, by poets who have written of what the future of Australia is to be -having a certain tinge of republicanism in my nature, the result naturally of my being a descendant of

an Englishman, I was surprised to find a gentleman occupying a position under the Crown proposingwhat 100 years ago would have been simply regarded as high treason. Why, the other day the hon.member, Mr. Munro, made a proposal with regard to one phase of the question which made me ejaculate,

"One strand of the painter has gone."



Mr. ISAACS:

There is a line up to which concession may become at any moment a sacred duty, but to pass that line wouldbe treason ; and therefore, when we are asked solemnly and gravely to abandon the principle of responsible


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government, when we are invited to surrender the latest-born, but, as I think, the noblest child of our

constitutional system-a system which has not only nurtured and preserved, but has strengthened the liberties of

our people-then, Sir, I feel in my heart that we are asked to reverse a century of development; that we areasked to deny an absolute and fundamental principle of our political existence-that we are asked, in short, todo what not only is inexpedient but utterly impossible. To stand here, sent as we are by the people of these

colonies, and to forget the struggles and the triumphs which have made our constitutional system what it is-atonce the pride and the hope of millions of our fellow subjects in various parts of the Empire, and the

admiration, nay, the envy of other nations, both unitary and federal, who have striven in vain to imitate its

excellencies-would be to earn for ourselves-I say it with all respect-and to justly earn, the contempt and the

execration of those whose trust we bear to this Convention.



Sir PHILIP FYSH.-I am going to suggest another alternative. The suggestion made that Western Australiawould have the option of collecting higher duties on foreign imports, is not likely to give them the revenuethey need. But it has been suggested-and I regret there almost seems to be, in some minds, treason in the

suggestion-that Western Australia should, at any rate for five years to come, in connexion with the collectionof her customs duties, have a decreasing or sliding scale on intercolonial products. I know it has been regarded

as almost treason against the Constitution that we should within the compact for a uniform Tariff think of one

colony which does not give thorough intercolonial free-trade.


Australasian Convention)Sir GEORGE GREY:

Let me just give one illustration of this. I was arranging for the federation of all South Africa-

triumphantly arranging it-certainly all the states, I believe, but one would have joined, and that onewould almost immediately afterwards have probably come in- but when it was heard of, the government

then in power, and the opposition at home, were alike filled with dread at such a federation as wascontemplated. It was said that the man who contemplated that was a dangerous man, and he must be

got rid of, and without a moment's warning I was dismissed from office as Governor and HighCommissioner of the Cape. Well, there was one person in the realm who thought differently. Afterwards,within a few days, the ministry were put out in consequence of a quarrel with Lord Palmerston-I think it was

within twelve days-and the first thing that was said to the new ministry was, "That man is right; you will yetlong to do what he could have done, and you will be sorry that it was not done; reinstate him in his position."

It was the Queen who spoke, and what was her feeling towards her people at large? As the Prince Consort

explained the matter to myself, they felt the necessity of openings for the poor, for the adventurous. Theythought no wrongful efforts should ever be made to extend an empire, that, so long as the people of GreatBritain, urged by their indomitable energy, kept pushing [start page 142] on themselves, winning new races,

winning new countries to join the great confederation of English people, so long would it be wrong for thesovereign to injure her people by saying they should not go to these new homes, they should not open these

new places for commerce, that they must remain shut up in a small and continually decreasing empire athome, as it would have been, if the policy had been acted upon of striking off place after place.

AndSir GEORGE GREY: If that is not done, of course we act against experience. I hear hon. gentlemen say

"No"; but they must recollect that it was foreseen that dire results would follow from the adoption of anothersystem, and that those dire results did follow, and, with that [start page 138] example before us, it appears very

doubtful if we ought not, pursuing the course of wisdom, to take steps which will prevent a repetition of thedisasters which took place in the United States. Some other plan of doing it may be devised; but the object

should be attained in some way or other without subjecting ourselves to the chances of future greatdisaster.

It is therefore clear that treason was held to go against the spirit of the Constitution .

While it may be argued that the Queen travelled to the Commonwealth of Australia as to give

Royal Assent as Queen of Australia, in view that the Constitution only recognised the British

Crown as was embedded in the Constitution then any purported Royal Assent given in the nameof the Queen of Australia is and must be regarded as being ULTRA VIRES. It never was

intended to be part of the PERPETUAL LEASE, that is embedded in the Commonwealth of

Australia Constitution Act 1900 (UK)


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Now lest quote the response to Is the Constitution safe by Nick Hobson, in that it does not

address the numerous legal issues Nick Hobson raises but rather address the issues from basics.

After all, why waste time to argue if a motor vehicle illegally parked in your drive way is ash-

grey, or some other grey, it is simply irrelevant to the issue that the motor vehicle in the first placeis illegally parked in your drive way regardless of the colour it may have.

Likewise, why argue about the statements of judges as to what they may consider to be applicable

where it is all irrelevant as I am not concerned what for example Section 51(1) of the Australia

Act may or may state as if it is intended to go against the spirit of the PERPETUAL LEASE(Constitution ) then the various Sections are of no importance.

QUOTE The Constitution is a PERPETUAL LEASE.

In response to the Is the Constitution safe by Nick Hobson"Australian Republic Unplugged"

4-3-2007

The Constitution is a PERPETUAL LEASE.

I have read through the document Is our Constitution safe and while there is no doubt by me

that a great research has been put into preparation of the document, to me it lacks substance as tothe validity of the Australian Act (UK) and/or Australian Act (Cth) or in that regarding other actssuch as the Westminster Act.

The assumption is that the British Parliament could legislate in regard of the Commonwealth of

Australia Constitution Act 1900 (UK) at its own free will. That is where the critical error is made

by numerous lawyer/judges/politicians, etc.

Unlike any other British Act this Constitution was the product of the consent of the People of

Australia. As my books already extensive set out the numerous debates quotations and each book

in Chapter 33 contains the Hansard records of the Debates, there is no need to extensively refer to

it other then to make some simple quotations as I do below.


Australasian Convention)Mr. DEAKIN.-

In this Constitution, although much is written much remains unwritten

The first thing is that the Constitution is not just a written Constitution but most of theConstitution is in unwritten form.

No one in his right mind therefore could interpret the intensions of the Constitution and how it

applies unless the person has extensively researched the unwritten part of the Constitution.

The Framers (Delegates) of the Constitution themselves made clear from time to time that theDebates were to be consulted as to their intentions expressed with the written constitution. They

specifically desired to keep the written constitution to a minimum as they made clear the more

they were to put into it the more lawyers would have a field day with every word used.

Many so called experts who have never bothered to research the true intentions of the Framersof the Constitution who happen to have some law degree or otherwise may be teaching law tend

to give their spin-doctor explanation as to what is constitutionally applicable even so some of

their comments are sheer and utter constitutional nonsense. They rely upon ill-conceived

statement of others who as like them relied upon yet other previous ill-conceived

statements/conclusions and on and on it goes. Having a law degree doesnt make one to be a

constitutionalist let alone an expert in constitutional matters. We only have to look at the


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lawyers appointed to the High Court of Australia who may have next to no experiences in

constitutional issues let alone comprehend it and yet are sitting there to adjudicate upon

constitutional issues they havent got a clue about. The citizenship issue is a clear example on

this.Law degrees merely permits a person to practice law regardless if such a lawyer would fail any IQ

test to have a proper intelligence for the kind of work they are engaged in. lawyers who may not

be able to make it on their own in a law practice may opt to become a lecturer in law at education

facilities and then spread their nonsense to upcoming lawyers. And on and on the problems go.

For example anyone who claimed that the Commonwealth of Australia Constitution Act 1900(UK) was discriminatory towards Aboriginals instantly reveals to me to lack substance in his/her

argument not knowing that he/she is talking about and trying to use spin-doctor tactics and other

ill-conceived explanations .

The Constitution, with any faults it may have is and remains to be the property of the people. It isso to say a PERPETUAL LEASE the Australians have with the British Parliament.

This is the simplistic explanation to give without any spin-doctoring by lawyers/judges/politicians

and others. While a landholder may sell off his assets to others, if however someone had a

PERPETUAL LEASE then the landholder and the new purchaser could do nothing but to

honour the PERPETUAL LEASE.If the Crown, for example, has entered in a contract with anyone it is bound by this contract and

cannot merely nilly willy ignore the legal implications of the contract.

As shown below we do have a PERPETUAL LEASE in existence with the British Crown and

the British Parliament

Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter into

any detailed examination of, or any elaborate apology for, the Constitution which we have been engaged inframing. But, sir, no man can remain unmoved upon this momentous occasion. We who are assembled in

this Convention are about to commit to the people of Australia a new charter of union and liberty; we

are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceiveof nothing of greater magnitude in the whole history of the peoples of the world than this question upon

which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by thebarons of England from a reluctant king. This new charter is to be given by the people of Australia to

themselves.

Again;This new charter is to be given by the people of Australia to themselves.

Therefore both the British Crown and the British parliament with the Consent of the AustralianColonies governments approved this PERPETUAL LEASE and as such nothing the British

government or the British Crown could do as to somehow undermine the rights obtained by the

Australian community with this PERPETUAL LEASE.

Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)

Mr. HIGGINS.-A number of laws have been held to be unconstitutional in America because of theirreasons and because of their motives. There was a funny case in San Francisco, where a law was passed by the

state that every prisoner, within one hour of his coming into the prison, was to have his hair cut within oneinch of his head. That looked very harmless, but a Chinaman brought an action to have it declared

unconstitutional, and it turned out that the law was actually passed by the Legislature for the express purposeof persecuting Chinamen.

Mr. BARTON.-That took place under the next clause in this Bill, which is a similar enactment.


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Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right in

saying that it took place under the next clause; but I am trying to point out that laws would be valid if they

had one motive, while they would be invalid if they had another motive. All I want is, that there should beno imposition of any observance because of its being religious.

Again;but I am trying to point out that laws would be valid if they had one motive, while they would be invalid

if they had another motive.

What we therefore must explore if the motives by the British Parliament, the Commonwealth of

Australia, the States and others were to deny Australians their legal rights of their PERPETUALLEASE, or if within the true spirit of the Constitution the enactment of the British parliament can

be deemed just and appropriate.

We also must consider if the British Crown could have legitimately have given Royal Assent toany British Parliament passed Bill to make it an enactment where it was to undermine the British

Crowns prerogative rights as provided for in the PERPETUAL LEASE. After all the British

Crown was bound by the PERPETUAL LEASE it had itself consented too.

Weeden v Davidson (1907) 4 CLR 895 at 898 (per Griffith CJ.)

It is necessary, in construing an act which alters the law, to inquire what was the state of the law before thealteration was made, what was the mischief intended to be remedied, and what was the nature of the remedy

provided.

In Constantine v Guilfoyle (1915) 32 W.N. (N.S.W.) 74 per FergussonNo doubt it is the duty of the court to look at the object of an act in determining what is the meaning of the

language which the legislature had used; but it is no part of the duty of the court to endeavour to carry out thatobject by makingsomething an offence which the legislature itself has not made an offence.

Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J.

This court however must take the act as it finds it, and cannot do violence to its language in order to bringwithin its scope, cases, which although within its mischief are not within its words.

Woolworths v Crotty (1942) 66 CLR 603 at 618 (per Latham CJ)

The act should be construed according to its intention of the legislature. Where the legislature has stated themischief for whichthe common law did not provide, consideration of the nature and extent of that mischief is

relevant to the interpretation of the act.

Therefore, if the British parliament and the British Crown provided with the consent of theAustralian Colonies and the People of Australia for the Commonwealth of Australia Constitution

Act 1900 (UK) to be a PERPETUAL LEASE, only to be amended by Section 128 of the

Constitution then any subsequent legislation that unduly appears to interfere with this

PERPETUAL LEASE can and must be held to be invalid in law for so far it seeks to exercise

powers beyond that provided for in the PERPETUAL LEASE.

QUOTE 16-3-2005 correspondence to Malcolm Turnbull

Hansard 31-3-1891

Sir SAMUEL GRIFFITH:There must be some method, and we suggest that as a reasonable one. With respect to amendments ofthe constitution, it is proposed that a law to amend the constitution must be passed by an absolute

majority of both the senate and the house of representatives; that, if that is done, the proposedamendment must be submitted for the opinion of the people of the states to be expressed in conventions

elected for the purpose, and that then if the amendment is approved by a majority of the conventions inthe states it shall become law, subject of course to the Queen's power of disallowance. Otherwise the

constitution might be amended, and by a few words the commonwealth turned into a republic, which isno part of the scheme proposed by this bill.

Again;Otherwise the constitution might be amended, and by a few words the commonwealth turned into a

republic, which is no part of the scheme proposed by this bill.END QUOTE 16-3-2005 correspondence to Malcolm Turnbull


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Mr. DEAKIN.-

What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the libertyand the means to achieve all to which men in these days can reasonably aspire . A charter of liberty is

enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government

for the whole of the peoples whom it will embrace and unite.

Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter intoany detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in

framing. But, sir, no man can remain unmoved upon this momentous occasion. We who are assembled in

this Convention are about to commit to the people of Australia a new charter of union and liberty; weare about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive

of n othing of greater magnitude in the whole history of the peoples of the world than this question uponwhich we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the

barons of England from a reluctant king. This new charter is to be given by the people of Australia tothemselves.

This is why it was made clear;

Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.

HANSARD 10-3-1891 Constitution Convention Debates (Official Record of the Debates of the National

Australasian Convention) (Chapter 33 of the CD)

Dr. COCKBURN:

Parliament has been the supreme body. But when we embark on federation we throw parliamentary sovereignty

overboard. Parliament is no longer supreme. Our parliaments at present are not only legislative, but constituent

bodies. They have not only the power of legislation, but the power of amending their constitutions. That must

disappear at once on the abolition of parliamentary sovereignty. No parliament under a federation can be a

constituent body; it will cease to have the power of changing its constitution at its own will.

Again;No parliament under a federation can be a constituent body; it will cease to have the power of changingits constitution at its own will.

This is why we need an OFFICE OF THE GUARDIAN, a constitutional council, that advises

the Government, the People, the Parliament and the Courts as to constitutional powers and

limitations. Then this OFFICE OF THE GUARDIAN can expose what is embedded in the

Constitution!

Only when such an OFFICE OF THE GUARDIAN is created for every State and the

Commonwealth of Australia will more sense be made out of constitutional issues.



Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the

Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each

state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from

the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the

Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate

provisions for the amendment of the Constitution? Why should we not say that the Constitution may be

amended in any way that the Ministries of the several colonies may unanimously agree? Why have this

provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers


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of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to

occupy a few minutes in discussing it.

END QUOTE 16-3-2005 correspondence to Malcolm Turnbull

Again;

should we have these elaborate provisions for the amendment of the Constitution? Why should we not

say that the Constitution may be amended in any way that the Ministries of the several colonies may

unanimously agree? Why have this provision for a referendum? Why consult the people at all? Why not

leave this matter to the Ministers of the day?



Mr. OCONNOR.-

We must remember that in any legislation of the Commonwealth we are dealing with the Constitution. Our

own Parliaments do as they think fit almost within any limits. In this case the Constitution will be above

Parliament, and Parliament will have to conform to it.

It must be clear therefore that the federal Parliament has no constitutional powers to legislate its

own Constitution, as the Australian Act 1986purports to do as then the Constitution no longer is

above the Parliament! It simply becomes an Act of the federal Parliament.



Mr. HIGGINS.-

I think an alteration with regard to the rest of the Constitution, what I may call the machinery part,

ought to be much easier than the forms for altering the Constitution with regard to the powers

conferred by the states on the Federal Commonwealth. If a number of the states come together and say-

" We are willing to surrender certain powers to the Central Government,

The purported Australian Act 1986was not within the powers of any State as the prerogative powers were beyondState powers.



Mr. GLYNN.-

We ought not to create the evil of making the Judges not merely interpreters, but the extenders of the

Constitution, and we ought to give the Constitution such a degree of elasticity as will render it capable of

being moulded to the changed conditions as time goes on, and prevent the dangerous alternative of judicial

expansion.

AndMr. ISAACS.-How could it?

Mr. HIGGINS.-It could not. The dead-lock clauses only apply to laws passed by the Parliament.

Mr. DOBSON.-But some honorable members argue that they would apply to a proposal to amend the

Constitution.


Again;



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It must therefore also be clear that the Constitution cannot be passed by the Federal parliament

(Commonwealth of Australia) as the Australian Act 1986 purports to do.



Mr. SOLOMON.-

We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just

interpretation of the Constitution:

The British Parliament cannot withdraw the Constitution and neither replace it, as it purported to

do with the Australian Act as Section 128 prevents this.

Then point out what in your view nevertheless allowed the Australian Act 1986to replace the

Constitution or in any way seek to undermine our constitutional rights existing since federation?Remember;

This new charter is to be given by the people of Australia to themselves.

Now what was very important was that the British Government sought to make it very clear it

didnt want to interfere with the make up of the Constitution as it desired to leave it to be theproduct of the Australian people. However reading the Hansard records makes it clear that not

only did they from time to time dictate opposition to certain clauses of the proposed Constitution

Bill but even after the final DRAFT was passed by the people of Australia they made some

amendments to it before it was passed by the British Parliament. And, every Hansard record was

through the then Prime Minister (as they were then referred to) of NSW Lyne passed on to theBritish Government, so the British Government desired to keep abreast as to what had been

debated and the intentions of the Delegates.

The various Delegates also referred to the Hansard records of the Debates to be later consulted by

the High Court of Australia as to discover their intentions. It is therefore embedded in the

constitution that it is mandatory for the High Court of Australia to consult the Hansard records of

the Debates as to the intentions of the Framers of the Constitution .

They also made clear that unlike the US constitution they desired to have a living Constitution

that albeit difficult could only be amended by the will of the people. They expressed their

concerns that otherwise the Constitution could be easily amended by the Parliament withoutconsultation of the electors.

It was also made clear that the Constitution would make a POLITICAL UNION among the

Colonies (now States) for so far that they were permitted to do s but could not interfere with the

judicial processes in the States. The High Court of Australia in its Kable 1996 decision whilereferring to the Debates did so to the discussions about the Privy Counciland not to 22-9-1897

Debates where it was made clear that the DUE PROCESS OF LAW would remain in Statelegislative powers.

While it is true that with the Constitution the Colonies were to be referred to as States, one cannothowever argue that the States are part of the Commonwealth of Australia. As to argue that would

be to infer that there was a total annihilation of the Colonies (now States) to its own sovereignty.

There was no new Dominion created as the colonies were and remained Dominions. There was no

new Country created as the Colonies (now States) remained sovereign countries in their own right

for so far it had not handed over legislative powers to the new created POLITICAL UNION theCommonwealth of Australia.


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Mr. SYMON (South Australia).-In the preamble honorable members will find that what we desire to do is to unite in one indissoluble FederalCommonwealth-that is the political Union-"under the Crown of the United Kingdom of Great Britain and

Ireland, and under the Constitution hereby established." Honorable members will therefore see that theapplication of the word Commonwealth is to the political Union which is sought to be established. It is not

intended there to have any relation whatever to the name of the country or nation which we are going to create

under that Union. The second part of the preamble goes on to say that it is expedient to make provision for the

admission of other colonies into the Commonwealth. That is, for admission into this political Union, whichis not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union by thename of "Commonwealth," and I do not propose to interfere with that in the slightest degree . The firstclause says-This Act maybe cited as the Commonwealth of Australia Constitution Act." I assent to all that.

Then comes clause 3, which says it shall be lawful for the Queen, by and with the advice of Her Majesty's

Most Honorable Privy Council, to declare by proclamation that, on and after a day therein appointed, notbeing later than one year after the passing of this Act, the people of the colonies enumerated shall be united ina Federal Constitution under the name of-I say it ought to be "of Australia."

Again;

That is, for admission into this political Union, which is not a republic, which is not to be called a

dominion, kingdom, or empire , but is to be a Union by the name of "Commonwealth," and I do notpropose to interfere with that in the slightest degree .

And also consider;Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)

Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are alike subjects ofthe British Crown.

Edmund Barton was born in NSW and later became the Second Prime Minister of Australia

after the first commissioned Prime Minister Mr. Lyne resigned his commission after 6 days

because he could not form a Government. He had been an obstruction to the formation of thepolitical union, but the Governor-General at the time held to be obligated to commission him to

be the first Prime Minister of the newly to be formed Commonwealth of Australia as Lyne was

the Prime Minister of the oldest colony NSW.


Mr. SYMON.-Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There

may be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is acitizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual

citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizenof the Commonwealth; that is the dual citizenship.

And

Mr. SYMON.-

. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to place inthe hands of the Commonwealth Parliament, however much I may be prepared to trust it, the right of

depriving me of citizenship.And

Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this

Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a

citizen of the Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, orrestrict those rights of citizenship, except with regard to one particular set of people who are subject to

disabilities, as aliens, and so on. Subject to that limitation, we ought not, under this Constitution, to hand overour birth right as citizens to anybody, Federal Parliament or any one else, and I hope the amendment will notbe accepted.

And

Mr. BARTON (New South Wales).-


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So far the right of citizenship, if there is a right of citizenship under the empire, is defined in theConstitution. Now, each citizen of a state is, without definition, a citizen of the Commonwealth if there is

such a term as citizenship to be applied to a subject of the empire. I must admit, after looking at a standardauthority-Stroud's Judicial Dictionary-that I cannot find any definition ofcitizenship as applied to a Britishsubject. No such term as citizen or citizenship is to be found in the long roll of enactments, so far as I

can recollect, that deal with the position of subjects of the United Kingdom, and I do not think we have

been in the habit of using that term under our own enactments in any of our colonies.

And

Mr. BARTON.-

He will be giving to the Commonwealth Parliament a power, not only of dealing with the rights of

citizenship, but of defining those rights even within the very narrowest limits, so that the citizenship of astate might be worth nothing; or of extending them in one direction, and narrowing them in another, so

that a subject living in one of the states would scarcely know whether he was on his head or his heels.Under the Constitution we give subjects political rights to enable the Parliament to legislate with regard to the

suffrage, and pending that legislation we give the qualification of electors. It is that qualification of electorswhich is really the sum and substance of political liberty, and we have defined that. If we are going to give

the Federal Parliament power to legislate as it pleases with regard to Commonwealth citizenship, nothaving defined it, we may be enabling the Parliament to pass legislation that would really defeat all the

principles inserted elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That isnot what is meant by the term "Trust the Federal Parliament."

Mr. HIGGINS.-You give the Federal Parliament power to naturalize.

Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of the BritishEmpire. Have we not done enough? We allow them to naturalize aliens. That is a power which, with the

consent of the Imperial authority, has been carried into legislation by the various colonies, and, of

course, we cannot do less for the Commonwealth than we have done for the colonies.

Mr. KINGSTON.-Such legislation is only good within the limits of each state.

Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a

person has as a British subject-the right of personal liberty and protection under the laws-is secured by

being a citizen of the states. It must be recollected that the ordinary rights of liberty and protection bythe laws are not among the subjects confided to the Commonwealth. The administration of [start page1766] the laws regarding property and personal liberty is still left with the states. We do not propose to

interfere with them in this Constitution.

Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 (9 December 2003).

Doesnt address what-so-ever the State legislative jurisdiction as to citizenship.Therefore, we have a High Court of Australia that appears to me being political motivated to try

to alter the Constitution by stealth!

It must be clear that the terminology used are; British subject, to make persons subjects ofthe British Empire., with the consent of the Imperial authority, What is meant is a dual

citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I amalso a citizen of the Commonwealth; that is the dual citizenship.

There are numerous other quotations that makes it very clear that Australians (as they then

already were referred in view of the title Australia of the continent) in reality were Britishsubjects and aliens were to be naturalized by consent of the British Parliament to be made British

subject (nationals).

Various other Hansard quotations were already extensively used in my published books and do

not need to be repeated, safe to say that it shows that the framers of the Constitution referred to

the people coming from India also as being British subjects and so those in Hong Kong, etc. As a


11/36




matter of fact because of the still existing WHITE AUSTRALIA policy that is embedded in the

Constitution by way of Subsection 51(xxvi) it was ensured that racism could be continued against

coloured people even those who were born in the Commonwealth of Australia, albeit they

protected Aboriginals from being subjected to such racism.The 1967 con-job referendum changed that all right.

As the Colonies all passed the Constitution Bill, then each and every colony (now State) is

governed to be racist and cannot therefore legislate against racism as the older legislation

triumph! The States cannot defeat the passing of the Constitution Bill where it became aCommonwealth powers in Subsection 51(xxvi). While personally I oppose any form of racial

discrimination nevertheless while it is permissible in the Constitution then I cannot argue against

it. It is for the electors to amend the Constitution within Section 128 referendum, if that is what

they desire.

The preamble is not itself part of the Constitution, it has in fact no legal meaning at all as the

Framers of the Constitution debated at length but because it was pursued by so many to recognise

God in the pre-amble the Framers of the Constitution not wanting to have the US disaster decided

then that they better made clear by Section 116 that it did not mean that the Commonwealth of

Australia could exercise any legislative powers to dictate religion or otherwise interfere with thereligious practices of anyone.

It was made clear however that without Section 116 there was still no powers for the

Commonwealth of Australia to legislate in any way with religion.


Mr. HIGGINS.-I hope it does, because it will become a very important matter. I should have thought that itwas not within the scope of Congress to pass a law, no matter how righteous, to close the exhibition on

Sunday, but I find, on looking to a number of decisions in the United States, that it has been held again andagain that, because of certain expressions, words, and phrases used in the Constitution, inferential powers are

conferred upon the Congress that go beyond any dreams we have at present. I know that a great many peoplehave been got to sign petitions in favour of inserting such religious words in the preamble of this Bill by men

who know the course of the struggle in the United States, but who have not told the people what the course ofthat struggle is, and what the motive for these words is. I think the people of Australia ought to have been told

frankly when they were asked to sign these petitions what the history in the United States has been on thesubject, and the motive with which these words have been proposed. I think the people in Australia are as

reverential as any people on the face of this earth, so I will make no opposition to the insertion of seemly andsuitable words, provided that it is made perfectly clear in the substantive part of the Constitution that we are

not conferring on the Commonwealth a power to pass religious laws. I want to leave that as a reserved powerto the state, as it is now. Let the states have the power. I will not interfere with the individual states in the

power they have, but I want to make it clear that in inserting these religious words in the preamble ofthe Bill we are not by inference giving a power to impose on the Federation of Australia any religious

laws. I hope that I shall be excused for having spoken on this matter. I felt that it was only fair that honorable

members should know that there is a damer in these words, if we are to look to the precedent of the UnitedStates. I will help honorable members in putting in any suitable words provided that we have sufficientsafeguards.

Mr. LYNE.-Will you explain, before you sit down, where the particular danger is?

Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealthpowers which ought to be left to the states. The point is that we are not going to make the Commonwealth a

kind of social and religious power over us. We are going into a Federation for certain specific subjects. Each

state at present has the power to impose religious laws. I want to leave that power with the state; I willnot disturb that power; but I object to give to the Federation of Australia a tyrannous and over-riding

power over the whole of the people of Australia as to what day they shall observe for religious reasons,


12/36




and what day they shall not observe for that purpose. The state of Victoria will be able to pass anySunday law it likes under my scheme.

AndMr. BARTON (New South Wales).-

The states have certain plenary powers, which we do not wish to cut down, except so far as may be

necessary for the purpose of federal government.

Citizenship was a legislative power left to the States also.

As Barton made clear;

If we are going to give the Federal Parliament power to legislate as it pleases with regard to

Commonwealth citizenship, not having defined it, we may be enabling the Parliament to pass legislationthat would really defeat all the principles inserted elsewhere in the Constitution, and, in fact, to play

ducks and drakes with it. That is not what is meant by the term "Trust the Federal Parliament."

Again;

that would really defeat all the principles inserted elsewhere in the Constitution, and, in fact, to playducks and drakes with it

This, as citizenship governed the franchise of people to vote in State elections. Once theCommonwealth of Australia could lay its hands upon defining/declaring citizenship it could

simply abolish the States by legislating that no citizens was to vote in State election or other kind

of nonsense.

Also other rights were associated with Citizenship.

When one look at the Constitution of Singapore;

QUOTE

PART IITHE REPUBLIC AND THE CONSTITUTION

Republic of Singapore.3.

Singapore shall be a sovereign republic to be known as the Republic of Singapore.

Supremacy of Constitution.4. This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislatureafter the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of

the inconsistency, be void.END QUOTE

QUOTE

Commonwealth citizenship.139. --(1) In accordance with the position of Singapore within the Commonwealth, every person who is a

citizen of Singapore enjoys by virtue of that citizenship the status of a Commonwealth citizen in common withthe citizens of other Commonwealth countries.(2) Any existing law shall, except so far as Parliament otherwise provides, apply in relation to a citizen of the

Republic of Ireland who is not also a Commonwealth citizen as it applies in relation to a Commonwealthcitizen.

END QUOTE

QUOTERights, liabilities and obligations.

161. --(1) All rights, liabilities and obligations of Her Majesty in respect of the Government shall on and afterthe commencement of this Constitution be rights, liabilities and obligations of the State of Singapore.

(2) In this Article, rights, liabilities and obligations include rights, liabilities and obligations arising fromcontract or otherwise, other than rights to which Article 160 applies.


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[104

Existing laws.

162. Subject to this Article, all existing laws shall continue in force on and after the commencement of thisConstitution and all laws which have not been brought into force by the date of the commencement of thisConstitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws

shall, subject to this Article, be construed as from the commencement of this Constitution with suchmodifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity

with this Constitution.

END QUOTE

Again;and all laws which have not been brought into force by the date of the commencement of this Constitution

may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subjectto this Article, be construed as from the commencement of this Constitution with such modifications,

adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this

Constitution.

This clearly does provide for the application of the The European Convention for the

protection of Human Rights and Fundamental Freedoms (the ECHR)!

Aggregate Industries UK Ltd., R (on the application of) v English Nature and & Anor [2002] EWHC 908 (Admin)(24th April, 2002)

53. In support of his submission that, for Article 6(1) to be engaged, it was necessary for the relevantproceedings to be directly decisive of the civil rights in question, Mr Sales referred to and relied upon

what he described as the consistent body of European jurisprudence on this point over the last thirty years(see paragraph 41 of Mr Sales written skeleton argument) in cases such as Ringeisen -v- Austria (No. 1)

(1971) 1 EHRR 455 at paragraph. 94, Albert & Le Compte -v- Belgium (1983) 18 EHRR 533 at paragraph28, Benthem -v- Netherlands (1986) 8 EHRR 1, Boden -v- Sweden (1987) 10 EHRR 367 at paragraph 30,

H -v- France (1989) 12 EHRR 74 at paragraphs 46-47 and Barmer-Schafroth -v- Switzerland (1997) 25EHRR 598 at paragraph 32. In the course of his submissions, Mr Sales referred to the following passage in

the judgment of the European Court of Human Rights (the ECtHR) in the case of Enzi -v- Austria(Application no. 29268/95) as a convenient and succinct statement of the relevant principles of law upon

which he relied:

The applicability of Article 6 depends on whether there was a dispute over rights andobligations which can be said, at least on arguable grounds, to be recognised underdomestic law and, if so, whether this right was of a civil character within the meaning

of Article 6(1) (see the Oerlemans -v- the Netherlands judgment of 27 November 1991 paragraphs 45-49). Article 6(1) only applies if the right is civil in character (see the

Benthem -v- the Netherlands judgment of 23 October 1985 paragraph 32). The disputemust be genuine and serious; it may relate not only to the existence of a right but also to its

scope and the manner of its exercise. The outcome of the proceedings must be directlydecisive for the right in question, mere tenuous connections or remote consequences notbeing sufficient to bring Article 6(1) into play (see the Allan Jacobson -v- Sweden

judgment of 25 October 1989 paragraphs 66-67, and the Masson and Van Zon -v- the

Netherlands judgment of 28 September 1995 at paragraph 44).

It ought to be clear that it could not be held that a person of Singaporean nationality somehowthen had the nationality of the Commonwealth (meaning British Commonwealth).

QUOTECommonwealth citizenship.139. --(1) In accordance with the position of Singapore within the Commonwealth, every person who is a

citizen of Singapore enjoys by virtue of that citizenship the status of a Commonwealth citizen in common withthe citizens of other Commonwealth countries.

(2) Any existing law shall, except so far as Parliament otherwise provides, apply in relation to a citizen of theRepublic of Ireland who is not also a Commonwealth citizen as it applies in relation to a Commonwealth

citizen.

END QUOTE


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What however was clear by this enactment by the British Parliament was that by virtue of this

Constitution every Singaporean would have the same right as any Australian in regard of being a

citizen in the British Empire (Commonwealth).

The provisions of the Singaporean Constitution;QUOTE

Rights, liabilities and obligations.

161. --(1) All rights, liabilities and obligations of Her Majesty in respect of the Government shall on and afterthe commencement of this Constitution be rights, liabilities and obligations of the State of Singapore.

(2) In this Article, rights, liabilities and obligations include rights, liabilities and obligations arising fromcontract or otherwise, other than rights to which Article 160 applies.

[104Existing laws.

162. Subject to this Article, all existing laws shall continue in force on and after the commencement of thisConstitution and all laws which have not been brought into force by the date of the commencement of this

Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such lawsshall, subject to this Article, be construed as from the commencement of this Constitution with such

modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformitywith this Constitution.

END QUOTE

is not existing in the Commonwealth of Australia Constitution Act 1900 (UK) this as this

Constitution was never intended to separate the Commonwealth of Australia from the BritishCrown. In fact, to have done so would have to cut of the Colonies(States) as the Commonwealth

of Australia is not a country but a limited political union. The European Union likewise is not a

country but a limited political union. It must therefore be very clear that Australians, regardless ofbeing natural born, naturalized or being aliens, all were British Subjects under the British Crown

albeit not necessarily British nations as if they were aliens then they did not attain the British

nationality until within Subsection 51(xix) being naturalized. It must therefore also be very clear

that the Constitution since federation guaranteed that Australians were British subjects under the

British Crown and anyone natural born or naturalized were British nationals.It also eventuated that for example Chinese who had paid their Poll Tax upon federation were

State citizen and so Australian citizens and voted in the first Federal election even so they had

not been naturalized and were and remained aliens. This, as the Delegates were concerned that ifthey were to take away the right to vote from aliens who had paid the Poll Tax and so entitled

to vote in the Colonies then the Commonwealth Constitution Bill might be rejected by them.Aboriginals were also referred to as native Australians but the term Aboriginal Australians

was not used as it is a ridiculous title as if Aboriginals are not Australians.

Sure, Aboriginal-Australians could exist if Aboriginals from other countries were to have settled

in the Commonwealth of Australia and naturalized, as the Delegates did refer to Aboriginals of

other countries.



Mr. KINGSTON.-Hong Kong is undoubtedly a British possession, and a Hong Kong Chinaman is

undoubtedly a native-born British subject. Thus, honorable members will see what difficulties might arise ifthe privileges of citizenship of the Commonwealth were extended to all British subjects . If that were done,

we should be landed in a difficulty against which it is well to provide. I think the very best, thing under all thecircumstances is to do-what is recommended by Dr. Quick, and give to the Federal Parliament power to,

legislate on this subject as occasion arises. I have no fear whatever but that they will make wise provisions onthe subject-provisions uniform throughout the Commonwealth-for extending to all British subjects those

privileges which they ought to possess, while at the same time safeguarding the rights of the Commonwealth.




15/36




Mr. HOLDER.-I accept that statement of the honorable member, but I submit that his proposed new clause

might be interpreted as I interpreted it by some authority, and, in that case, we should be landed in a very

unfortunate position. Dr. Quick's amendment is even worse, because it provides that-

All persons resident within the Common-wealth, being natural-born or naturalized subjects of the Queen, andnot under any disability imposed by the Parliament, shall be citizens of the Commonwealth.

Now, it might be easily conceivable that, simply because a man was born under British rule in India, China,or elsewhere, therefore, of necessity, on arriving in one of these colonies, he could claim citizenship of the

Commonwealth. Is it not a mistake to stereotype in the Commonwealth Bill at this period our opinions on thissubject? Would it not be better to authorize the Federal Parliament to deal with this question, not once only,

but from time to time as circumstances and [start page 1791] conditions may change? I hope that both the

proposals will be withdrawn or negatived, and that at a later stage an opportunity will be given to Dr. Quick totry again what he tried yesterday, a provision which, as then proposed, or with a slight alteration of the words,would give to the Federal Parliament power to determine the citizenship of the Commonwealth from time to

time, and thus to meet any changes of conditions, which certainly ought to be met if they arise, but whichcannot then be met if we now arrive at some decision and stereotype it once for all in this Constitution.

Sir EDWARD BRADDON .-I submit there is a still better course open to us, and that is to giveconsideration to the amendment proposed by the Assembly of Tasmania, which has received up to the present

time no attention whatever.

Mr. GLYNN.-Not sufficient attention, at all events.

Sir EDWARD BRADDON.-The amendment is to omit clause 110, and insert the following now clause:-

The citizens of each state, and all other persons owing allegiance to the Queen and residing in any territoryof the Commonwealth, shall be citizens of the Commonwealth, and shall be entitled to all the privileges andimmunities of citizens of the Commonwealth in the several states, and a state shall not make or enforce any

law abridging any privilege or immunity of citizens of the Commonwealth, nor shall a state deprive anyperson of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the

equal protection of its laws.

Now, there is a clause that covers the whole ground-a clause that is all-sufficient for the purpose-bearing in

mind that every provision is made for securing to the Commonwealth that its citizens shall not be people ofalien races to any considerable extent. There are in India some 150,000,000 British subjects, but of those

150,000,000 people very few indeed could stand the test applied by the Natal Immigration Restriction Act,which I think has been adopted already in Western Australia; which will no doubt be adopted in other

colonies. of Australasia, and which will be effective in keeping from our shores the natives of India whocannot pass the education test that is applied under the Natal Act. This education test is one which would

debar some 149,000,000 at the least out of 150,000,000 from qualifying, and would so keep them out ofAustralia. There you have a very much wider disability-and I think a very wholesome disability-which goes

far and away beyond that suggested by the learned and honorable member (Mr. Isaacs). I think if we took thisclause into our consideration, it might be found to do all that is required for us.

Mr. TRENWITH (Victoria).-It seems to me that the clause that has just been read by the Right Hon. Sir

Edward Braddon-the one suggested by the Tasmanian Assembly-would land us in greater difficulties thananything we have thought of yet, and I think we shall be incurring a very great risk in endeavouring to

define who is in future to be considered a citizen of the Commonwealth. We have a right to deal to -daywith what we think is right for to-day, but we have Do right to tie the hands of the future people of theCommonwealth in this connexion. Therefore, I think it would be extremely wise to reject both of these

amendments, with the view, as suggested by Mr. Holder, of getting back, if we can, to the proposal which wehad before us yesterday, and which says exactly what I think we ought to say in connexion with all questions,

namely, that the Parliament shall have the power to deal from time to time, as necessity dictates, with thequestion of citizenship, if we are to deal with the matter at all. The clause we have here, proposed by Dr.

Quick, reads as follows:-

All persons resident within the Commonwealth, being natural-born or naturalized subjects of the Queen, and

not under any disability imposed by the Parliament, shall be citizens of the Commonwealth. [start page 1792]

I think it has been shown that it would be unwise to insert that provision in the Bill. The Attorney-General of


16/36




Victoria suggested that there may be here-indeed experience has shown that there will be-as in various

countries of the world, races within the nation that remain distinct; that do not blend with our people; that are

by their existence and by their rapid increase inimical to the well-being of the whole community. This hasbeen made very manifest in America. Any student in the history of America must see that the negropopulation is a disturbing factor which is increasing with immense rapidity in that country. They had to make

them citizens, but the Americans made a mistake by declaring that the negroes should be citizens.

Mr. SYMON.-They did not make them citizens; they gave them the franchise.

Mr. BARTON.-They were made citizens.

Mr. TRENWITH.-They were constituted citizens under an impulse of generosity that we must alladmire; but the circumstances that have since developed prove that that act was extremely unwise, and

America is only prevented from taking this right of citizenship from the negroes by the rigid cast-ironcharacter of its Constitution. Now, we are here making a Constitution, and we must be careful not to do

something which may seem for the moment wise, but which may tie the hands of the future people of theCommonwealth from doing what they, judging from circumstances altogether different from those we

are acquainted with, positively know to be wise. It seems to me we have already power in theCommonwealth to deal with aliens, and we have power to declare in a certain sense the character of

citizenship in connexion with the form of naturalization that may be adopted.And

Mr. KINGSTON (South Australia).-I agree with what has fallen from the honorable and learned member(Mr. Isaacs). I think that we made a mistake yesterday when we rejected the amendment of the honorable andlearned member(Dr. Quick), and I trust that before we finally separate, we shall be able to include that

amendment in the Constitution, or, if not, to adopt a provision similar to that which was suggested by thehonorable and learned member (Mr. Glynn), which would have made the clause read as follows:-

A state shall not deny to the citizens of other states the privileges and immunities of its own citizens.

That, I understand, would mean that a Victorian citizen, whether a Chinaman or any one ease, going,say, into the great province of Western Australia, would be entitled to all the privileges and immunities

of a citizen of Western Australia. If Western Australia had legislated to restrict the rights of Chinesewithin her borders, a Chinaman going there would be subject to that restriction, but if no restrictions

had been imposed upon Chinese [start page 1784] residing within Western Australia, it would beimpossible for Western Australia, simply because a Chinaman came from another colony, to treat him

differently from the way in which Chinese residents there were treated. It seems to me an anomaly touse the word "citizen" in this Constitution, if you neither define it nor make provision for its definition.

I asked the honorable and learned member(Mr. Symon), what was his definition of "citizen," and Iunderstood him to say that a citizen was a man who had the rights of citizenship. That reminded me of

the definition once given of an archdeacon, who was described as a reverend gentleman who performedarchidiaconal functions. Such a definition may be all very well in humorous conversation, but we have

already been warned about the impropriety of inserting anything of this character in the Constitution. Itrust that we shall make this Constitution perfectly intelligible within its four corners, and I do not

think we can do that without adopting some provision of the kind suggested by the honorable andlearned member (Dr. Quick).

Mr. DOUGLAS (Tasmania).-I take it that what is required is that the position of citizens of the

Commonwealth should remain practically what it is now, and that each citizen, when he went out of hisown state into another, should be liable to the laws of that state, but to no special laws. On the other hand,

he should not be able to carry with him any particular privileges. It seems to me that we should take care toprevent the states from passing any law which would restrict the rights and liberties of citizens of other states

who happened to come within its borders.

Do note that Dr Qucks amendment was defeated to provide citizenship legislative powers for

the Commonwealth of Australia.


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A problem the Delegates also had was that they referred to Afghans, Chinese, etc as being a

coloured race rather then a nationality. Their true intention was to mean that Afghans were a

coloured race and so fell within Subsection 51(xxvi) legislative powers.

As the Delegates also made clear was that external affairs was limited to powers to be

exercised already elsewhere given in the Constitution to the Commonwealth of Australia and

could not be used to make treaties beyond its existing legislative powers. While the High Court of

Australia in the Tasmania Dam case purported otherwise and so argued that the Commonwealth

of Australia could deal with environment, my books have set out extensively that the delegatesspecifically left environment in the hands of the States albeit recognized that where it related to

existing Commonwealth powers as an indirect power then it could be used. Meaning, that if

environment related to say navigation of rivers then it was within the Commonwealth of

Australia legislative powers to deal with this, but not beyond this.

The Delegates did not recognize the Darling being a navigating river but did accept that theMurray was and the commonwealth then could exercise legislative powers within Section 100 of

the Constitution as to regulate the allocation of water.


Hansard 1-2-1898

Mr. HOLDER.-We do not want to deprive New South Wales of any such power. We wish to leave that

colony as free as ourselves to use her rightful share of the water for any purpose she pleases. Who is to

determine what is the rightful share? The Federal Parliament.END QUOTE 16-3-2005 correspondence to Malcolm Turnbull


Hansard 1-3-1898[start page 1683]

Mr. SYMON.-It is not a law if it is ultra vires.

Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was attacked.And

Mr. GORDON.-Once a law is passed anybody can say that it is being improperly administered, and it leaves open the

whole judicial power once the question of ultra vires is raised. Under the clause, as I have amended it, itwill not prevent the plea of ultra vires being raised where it is accompanied with the plea of a conflict of law.

If there is a state law and a Commonwealth law on the same subject, every citizen is entitled to know which beshould obey. If he joins a plea ofultra vires with a plea of conflict of law, that ought to be heard.

END QUOTE 16-3-2005 correspondence to Malcolm Turnbull

Therefore it doesnt matter if CoAG (Council of Australian Governments) does or doesnt agree

to referring legislative powers to the Commonwealth of Australia as it will remain ULTRA

VIRES.

Again;Why should we not say that the Constitution may be amended in any way that the Ministries of the

several colonies may unanimously agree?And

If he joins a plea of ultra vires with a plea of conflict of law, that ought to be heard.

This, I successfully argued in my successful appeals on 19 July 2006 also, and this was

UNCHALLENGED by the Federal Government.

The Australian Act 1986 clearly is not valid merely because the state may have agreed to it, asBarton made clear that even if the Commonwealth of Australia was to agree with the states it still

would require a Referendum to approve of it. After all, consider a 10 billion dollar expenditure to


18/36




some State to be carried by other States also. Constitutionally, the Commonwealth of Australia

could not use 10 billion dollars from Consolidated Revenue but would have to put a special levy

against the participating States to raise the 10 billion dollars.

What we have seen however is that we have this COAG (Council of Australian Government)now making deals with the Federal Government to hand over legislative powers disregarding

entirely constitutional limitations. The Territories are in fact owned by the States and as such

subservient to the States through the Commonwealth of Australia and then it is nonsense to hold

that the Territories somehow can be an equal partner. More over, the 1976 High Court of

Australia decision as to the voting right of Senators of territories was also ill conceived, as theDelegates made clear during the Debates that Senators would be allowed to represent their

constituents but would not be entitled to vote as the Senate was a State House.

What the electors of the Colonies were seeking to achieve is to combine their legislative powers

for so far required for a federation but no more. For example, the issue was to provide postalservice that all Australians would pay the same charge for postal service and also with telephone

charges, we have seen however that the Commonwealth of Australia has Australian Post and

Telecom (Telstra) charging variable rates undermining the very intention of the Framers of the

Constitution . Indeed, they made clear the didnt desire to have the same problems as the USA to

have telephone companies in private hands and for this had this made a Commonwealth ofAustralia entity. Nothing in the Constitution actually permits the Sale of Telstra and as Section 69

does not provide for until the parliament otherwise provides it is unconstitutional to sell of

Telstra.

While the British Parliament passed the Commonwealth of Australia Constitution Act 1900(UK) it was a, so to say, trade off with the people of Australia. It was to give the Australians a

certain independence of limited self-government without it all together separating from the British

empire. The Constitution guaranteed for example within Subsection 51(xix) that aliens would be

naturalized to become British nationals.

Nothing in the Constitution did in any way authorize the Commonwealth of Australia to

declare/define the nationality of any person born within the Commonwealth of Australia andneither did the Colonies (now States) have such a power as it was under British law that a person

born in the realm of the King has the nationality of the King.

It means that any child born (other then that of diplomats of foreign nations) if natural born in the

Commonwealth of Australia are and remain to be British nationals.

It was made clear that only Section 128 of the Constitution could be used to amend the

Constitution and any other way would be ULTRA VIRES.

What also ought to be clear is that the Colonies (now States) lost their sovereign rights to amendtheir own constitutions at will but required from then on a referendum form their elector to do so,

as once the Colonies had adapted that the electors had to approve the handing over of powers forfederation to the Political Union then it was bound to continue this.

Again;

No parliament under a federation can be a constituent body; it will cease to have the power of changing

its constitution at its own will.

While NSW seemed to have amended its constitution and so Victoria and other States since

federation unless this was by referendum of the electors of that State those amendments to their

constitutions are not worth the paper it is written upon.


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One of the other problems is the use and interpretation of Subsection 51(xxxvii) and (xxxviii).

The Delegates at length debates those provisions and made clear it could not be used to expand

the constitution. For example, while much is argued about the Australian Act 1986 (Cth) it is not

a matter that fell within either subsection 51(xxvii) or (xxxviii) and as such is and remains to beunconstitutional.

While the British Parliament has the inhered right to amend its own legislation and/or altogether

eliminate provisions, it can however not deny existing rights as existed prior to this.

And this is where one need to have an extensive knowledge of what the Constitution stands for.How many lawyers would have known that Section 51(xxvi) legislation AUTOMATICALLY

robs every person of the race against which legislation is enacted their citizenship (being political

rights) and so their franchise?

And I can go on and on.

It is embedded in the Constitution that anyone born in the Commonwealth of Australia is a

subject of the British Crown. It is therefore beyond the legislative powers of the British

Parliament to in anyway enact any legislation that would deny this right as it is part of the

Constitution and Section 128 referendum neither can get around this. The very reason being thata Section 128 referendum cannot deal with prerogative powers as the Delegates made clear.

Therefore, the legislative powers that the British parliament was left with was to legislate

anything but what would conflict with the Constitution, including the unwritten part of the

Constitution , as they had been aware of all debates and accepted the tenure of it when enacting

the Commonwealth of Australia Constitution Act 1900 (UK).

Again we have to consider;QUOTE

Commonwealth citizenship.139. --(1) In accordance with the position of Singapore within the Commonwealth, every person who is a

citizen of Singapore enjoys by virtue of that citizenship the status of a Commonwealth citizen in common with

the citizens of other Commonwealth countries.(2) Any existing law shall, except so far as Parliament otherwise provides, apply in relation to a citizen of theRepublic of Ireland who is not also a Commonwealth citizen as it applies in relation to a Commonwealth

citizen.END QUOTE

If the British were able to legislate that Singaporean would in effect have the same rights as other

citizens of the British Commonwealth then it clearly legislated it to be applicable to the

Commonwealth of Australia also.

There appear to be no conflict to this part in regard of the Commonwealth of Australia

Constitution Act 1900 (UK), this as the Framers of the constitution made clear that any British

subject was entitled to enter the Commonwealth of Australia unless they were under a disability.

Again, because of India being then under British rule and the Framers of the Constitution wantedto avoid being flooded by Indians, they devised Subsection 51(xxvi) as an alternative to prevent

coloured races to come into the country if needed. However, they made clear that British law

would override Commonwealth of Australia law in regard of treaties, and as such it is embedded

in the Constitution that British law remain to be applicable as they were at the time of Federation,

unless the laws were in total repealed.It also means that the Westminster Act was worthless for so far it attempted to give the

Commonwealth of Australia powers that was to interfere with the constitutional powers existing.

Any 1939 purported acceptance of the Westminster Act by the Commonwealth of Australia


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therefore was worthless where it sought to retrospectively validate previous legislation as the

Delegates made clear they opposed retrospective legislation.

With Singapore there was a handing over of legislative powers from the British Parliament toSingapore and the constitution does clearly show this. With the Commonwealth of Australia

Constitution Act 1900 (UK) such intention was never existing, to the contrary the Delegates made

it very clear it was not desired and opposed any move to do so. Therefore, if any legislation by the

British Parliament, subsequently to the passing of the Commonwealth of Australia Constitution

Act 1900 (UK) (as known after Royal Assent was given) is to in anyway diminish the written andunwritten provisions of the Constitution then it would be ULTRA VIRES for so far this was in

such subsequent legislation.

All properties for example are owned by the Crown. They cannot change to become property

of the Commonwealth of Australia as it is only a sovereign for so far it exercise sovereign powers

in the name of the British Crown governing legislative powers granted by the Constitution .As a matter of fact while Western Australia and some other states may have abolished the usage

of the Crown in their legislation they real danger they are facing is that all and any charges levied

against any offender may be constitutionally NULL AND VOID, as under the Constitution one

can only be charged in the name of the Crown.

Remarkable, on the one hand the High Court of Australia in the Kable decision seeks to dictate(albeit wrongly) that the State judiciary is bound by the Federal Constitution, albeit this never

was intended, on the other hand where the Crown is part of the Federal Constitution then the

High Court of Australia seems not to follow this reasoning.

There is another significant difference between Australian legal powers and that of the British.For example, in the UK the British Government can use the, so called, Henry VIII powers to

amend legislation the Australian Parliament has no such powers, albeit somehow the High Court

of Australia seeks to apply this with exercising of islands from the migration zone.

A Minister of the Crown in the UK has unlimited powers within his/her portfolio where as a

Minister of the Crown in the Australian Government is limited to act for the peace, order and

good government as the Framers of the Constitution made clear.The British Parliament can enact legislation for any part specifically or in total of the empire. The

Commonwealth of Australia can only legislate enactment for the whole of the Commonwealth of

Australia and cannot exclude any part of it. Hence the so-called exercising of Islands from the

migration zone is a sheer and utter nonsense.The British Parliament has all powers as to deal with a persons liberty, property, religion and

political rights. The Commonwealth of Australia has very limited power

chapter 006-_p36_the constitution is a perpetual lease

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